Coleman's best hope is in court

Article by: PAT DOYLE

Star Tribune

January 5, 2009 - 5:36 AM

Nearly seven weeks after Norm Coleman entered the recount with a slim lead, his chances of retaining his U.S. Senate seat now depend increasingly on his bid to count hundreds of rejected absentee ballots from mostly Republican-leaning precincts.

The state Canvassing Board prepared to meet today with DFLer Al Franken holding a 225-vote edge, a lead that widened over the weekend and made Coleman's task more difficult.

The campaigns were largely quiet Sunday while they awaited word from the Minnesota Supreme Court on what to do with the rejected absentee ballots.

Barring court action, the board could certify the results of the recount this afternoon, presumably with Franken on top. If that happens, the Coleman campaign has indicated it's likely to file an "election contest," a legal challenge to the election. That battle probably would leave the seat vacant for weeks.

Asked whether Coleman would sue, Coleman recount lawyer Fritz Knaak said: "He doesn't have to make that decision yet. I have no reason at this time ... to believe we aren't going to be contesting this thing if we're down at the end of the day."

"The only thing that could waver or change that would be a call from Norm Coleman saying, 'I don't think so,' and I don't see that coming," Knaak said.

Franken's unofficial lead rose from 49 votes to 225 on Saturday, when the secretary of state's office counted 933 absentee ballots that had been identified by local officials and the two campaigns as wrongly rejected.

Coleman has asked the Supreme Court to order counties to send hundreds of other rejected absentee ballots to the secretary of state to review for possible counting.

If the court refuses to make the additional ballots available before a Canvassing Board decision, Coleman can file the lawsuit within days to seek to have them admitted. Knaak said the suit also could claim that as many as 150 ballots in DFL areas were counted twice and that the counting of some missing ballots inflated Franken's lead by another 46 votes.

Echoes in Washington

Franken's increased lead prompted New York Sen. Charles Schumer, who was chairman of the Democratic Senatorial Campaign Committee during last year's elections, to declare Sunday that Franken had won.

But Knaak dismissed the comment as an attempt by Democrats to pressure Republicans and Coleman to give up. "The Republicans are not at all, in the Senate and in Washington, interested in folding to that kind of pressure," he said.

Senate Republicans have threatened to filibuster any attempt by Democratic leaders to seat Franken provisionally while a legal fight was playing out.

In an e-mail Sunday, Franken campaign spokesman Andy Barr said: "In terms of future planning, we're taking it one step at a time. The next step is the canvass board's meeting tomorrow, where we have every expectation they will declare that Al won the election."

Assessing the absentees

In its request to the Supreme Court, the Coleman campaign has argued that counties applied inconsistent policies in considering whether to count rejected absentee ballots.

The court asked for, and received, additional information Saturday from various parties but had not issued a ruling when this edition went to press.

In Saturday's counting of the 933 absentee ballots that were identified as wrongly rejected, Franken won 52 percent and Coleman captured 33 percent. The rest either went to other candidates or included no votes in the Senate race.

Franken's success on that front didn't surprise Ramsey County elections chief Joe Mansky. He said the ranks of absentee voters were swelled this election by a large number of "very young voters, either first-time voters or maybe not so young but who traditionally had not been in the voting population."

"If you believe the polls, that group was strongly skewed toward the Democrats," he said.

"The line that we had at our office on Nov. 3, the Monday before Election Day, I was outside talking to a lot of people and asking them, 'Why did you come over today?'" Mansky recalled. "A number of people told me they were sent over there by the Obama campaign."

Mansky said newer voters might be more likely to commit minor errors on their absentee ballots that caused election officials to wrongly reject them.

Coleman options

Although the Coleman camp wants the Supreme Court to order officials to consider 654 more rejected ballots as part of the current recount and canvass, it sees a court contest as a workable option. "I think one way or another, those ballots will be counted," Knaak said.

He also said that while the rejected ballots are important to the Coleman strategy, the campaign could win a court election fight without them.

"It's conceivable, I'm not saying probable or likely, but conceivable that in a ... [court] contest, we could see these numbers change by hundreds on both sides," he said. "Everything is on the table and it's a different game."

For instance, the campaign has claimed that as many as 150 votes were counted twice in 25 DFL-leaning precincts. "One of the remedies is you just simply throw out the entire result," Knaak said, referring to hundreds of additional ballots cast in those precincts. "The entire precincts' results are viewed as tainted."

Franken recount lawyer Marc Elias has said the claim of double-counting is a theory in search of evidence.

Fred Morrison, a University of Minnesota professor of constitutional law, said he thinks the state Supreme Court will decide that a court contest, not the current recount process, is the proper forum for resolving the absentee ballot dispute.

The election contest would be heard in Ramsey County by a three-judge panel assigned by Chief Justice Eric Magnuson, a Pawlenty appointee. It would have to begin within three weeks after filing, and there would be another 15 days to appeal its decision.

Morrison said Coleman's absentee ballot claim could become the basis for a bid to the U.S. Supreme Court that inconsistent treatment of ballots from county to county violated the U.S. Constitution's equal protection clause.